Jharkhand High Court
Samsuddin Ansari vs Md. Sikandar Ali on 24 February, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 196 of 2020
1. Samsuddin Ansari, aged about 60 years, S/o Late Gopi Mian
2. Bibi Nuresha Khatoon, aged about 58 years, wife of Samsuddin Ansari
Both residents of village Maskidih, P.O. & P.S. Barkatha, District
Hazaribag ... ... Defendants/Appellants/Appellants
Versus
1. Md. Sikandar Ali, son of Late Munsi Mian
2. Md. Daud Ali, son of Late Munshi Mian
3. Asif Eqbal, S/o Late Md. Lukman
4. Moshin Kamal, son of Late Md. Lukman
5. Md. Sahid, son of Late Md. Lukman
6. Sahid Akhtar, son of Late Md. Lukman
7. Farida Khatoon, wife of Alimuddin
All residents of village Maskidih, P.O. & P.S. Barkatha, District
Hazaribag ... ... Plaintiffs/Respondents/Respondents
8. Bibi Karima Khatoon, wife of Sultan Mian
9. Sultan Mian, son of Late Gopi Mian
10.Sl. NOs. 8 & 9 residents of village Maskidih, P.O. & P.S. Barkatha,
District Hazaribag
... Defendants/Proforma Respondents/Proforma Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Sudhir Kr. Sharma, Advocate
Mr. Shashi Shekhar Dwivedi, Adv.
For the Respondents :
---
th
15/24 February 2025
1. Heard the learned counsel appearing on behalf of the appellants.
2. In spite of service of notice, nobody has entered appearance on
behalf of the respondents.
3. This appeal has been filed challenging the part of judgment dated
28th February, 2020 and decree sealed and signed on 7th March, 2020
passed by the learned Additional District Judge-II, Hazaribag in Title
Appeal No. 82 of 2012 whereby the learned appellate court partly allowed
the appeal and affirmed the part of the judgment dated 29th September,
2012 and decree sealed and signed on 12th October 2012 passed by the
learned Civil Judge (Junior Division), Hazaribag in Title Suit No.
147/2000. The learned trial court had decreed the plaintiffs' right, title,
interest over the land of Khata No. 247, Plot No. 2447 & 2452 Area 10
decimals each of village Maskidih, P.s. Barkatha, District Hazaribag
described in Schedule-I of the plaint.
4. This appeal was admitted for hearing vide order dated 12.06.2023
on the following substantial question of law: -
"Whether the learned first appellate court committed gross
illegality by not considering the records of Case No. 524 of
1967 brought on record of the First Appeal along with the
petition filed under Order XLI Rule 27 of Code of Civil
Procedure; in respect of which, though vide order dated
25.02.2019, the learned first appellate court mentioned that
appropriate order would be passed in respect of the said
petition filed under Order XLI Rule 27 of Code of Civil
Procedure yet neither any order was passed in respect of the
said petition under Order XLI Rule 27 of Code of Civil
Procedure nor the same was considered; without any rhyme
or reason?"
5. The learned counsel for the appellants has referred to the memo of
appeal and has submitted that at the appellate stage, additional evidence
was led on behalf of the appellants who were defendant Nos. 1 and 4 in
the title suit to bring on record the certified copy of order-sheet in Case
No. 524/1967 of Survey Settlement Office of Hazaribagh. The learned
counsel while referring to order dated 25.02.2019 passed by the learned
first appellate court has submitted that the certified copy of the order-sheet
in Case No. 524/1967 of Survey Settlement Office of Hazaribagh
obtained from the record room, Hazaribagh was filed and the learned
court specifically recorded that at that stage, the document could not be
considered but at the time of final hearing of the appeal and after
appreciating the evidence on record if the court reaches to the conclusion
that the document mentioned in the petition is required as an additional
evidence to be on record to pronounce the judgment, then at that time
appropriate order will be passed in this regard. The learned counsel has
submitted that the judgment passed by the learned first appellate court
does not refer to the certified copy of the order-sheet in Case No.
524/1967 of Survey Settlement Office. He has also submitted that the
document which was sought to be adduced as additional evidence has
been filed during the course of admission and has been annexed along
with the records of this case. He has referred to the said document sought
to be adduced by way of additional evidence at first appellate stage and
has submitted that the Case No. 524/1967 of Survey Settlement Office
was relating to the case of Vatan Modi and others and it had nothing to do
with the plaintiffs of the case. The learned counsel has submitted that the
entire case of the plaintiffs was primarily based on the entry made in the
Khatiyan which referred to Case No. 524/1967 and accordingly if the
order-sheet of Case No. 524/1967 was not concerning the parties then the
very basis of the claim of the plaintiffs would not exist and consequently
the suit was fit to be dismissed. The said additional evidence which goes
to the root of the matter having not been considered by the first appellate
court and has caused prejudice to the appellants.
6. The learned counsel for the appellants has also placed the plaint and
written statement of respective parties and has submitted that it was the
specific case of the defendant Nos. 3 and 4 who had filed their written
statement that the order in Case No. 524/1967 was fraudulently obtained.
7. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court reported in (2012) 8 SCC 148 paragraph 36 to 52
to submit that as per Order XLI Rule 27 of C.P.C, the document through
additional evidence is to be considered at the time of final hearing and if
the Court finds it difficult to pronounce the judgment, then such additional
evidence can be looked into. He has submitted that had the appellate court
looked into the aforesaid additional evidence, the decision would have
been different as the very basis of the claim of the plaintiffs would have
been demolished.
8. During the course of arguments, the learned counsel for the
appellants has placed the exhibited khatiyan in which Misc. Case No.
524/1967 under Section 87 of the Chhota Nagpur Tenancy Act
(hereinafter referred to as the 'CNT Act") has been mentioned by way of
note under the signature of Additional Settlement Officer, Hazaribagh.
9. During the course of argument, it transpired that the additional
evidence which was sought to be adduced by the appellants was having
case No. 524/1967 but was relating to case under Section 90 of the CNT
Act and was a proceeding of Survey Settlement Officer, Hazaribagh. It is
not in dispute that jurisdiction exercised under section 87 of the CNT Act
is different from the jurisdiction exercised under section 90 of the CNT
Act.
However, during the course of argument, it is not in dispute that the
certified copy of order-sheet of Case No. 524/1967 of Survey Settlement
Office of Hazaribagh which was sought to be introduced by way of
additional evidence mentioned that the case was under Section 90 of the
CNT Act.
10. Post this case for judgment on 27.02.2025.
(Anubha Rawat Choudhary, J.)
Mukul
